Wedding cake case gets hearing from a skeptical Supreme Court

A demonstrator outside the U.S. Supreme Court in December 2017 holds up a rolling pin in support of baker Jack Phillips during arguments in the case of Masterpiece Cakeshop vs. Colorado Civil Rights Commission, also known as the wedding cake case. Associated Press/Jacquelyn Martin

WASHINGTON — The Supreme Court gave a somewhat skeptical hearing Tuesday to a Colorado baker’s claim that he had a free-speech right to refuse to make a wedding cake for a same-sex couple, despite a state civil rights law that bans such discrimination.

Several justices questioned why a baker’s work could be considered speech and how the court could set a legal rule that would allow some businesses involved in “expressive” work, but not others, to refuse to serve certain customers.

Jack Phillips, the baker who refused to make a cake for a gay couple, waves outside the Supreme Court on Tuesday. Washington Post/Bill O'Leary

Charlie Craig, left, and David Mullins touch foreheads Tuesday after leaving the U.S. Supreme Court, where their case was heard. Associated Press/Jacquelyn Martin

What about a jeweler, a hairstylist or a makeup artist, asked Justice Elena Kagan. “How do you the draw the line?”

Kagan pressed Kristen Waggoner, lawyer for cake maker Jack Phillips, to explain why a baker should have a free-speech right to refuse to bake a wedding cake for a same-sex couple, but not a chef or wedding dress tailor working at the same event.

“Because it’s not speech,” Waggoner said.

“Some people may say that about cakes, you know,” Kagan replied.

The justices were weighing a clash between gay rights and religious liberty and trying to decide when, if ever, a business owner has a right to be exempted from a state’s civil rights law. Colorado, like 21 other states, says businesses that are open to the public may not deny equal service to customers because of their race, religion, nationality or sexual orientation.

Justice Anthony M. Kennedy, who probably holds the deciding vote, pressed a Trump administration lawyer who defended the baker’s right to turn away a same-sex couple. If the court were to grant such a right, Kennedy asked, would a store owner with religious objections be able to post a sign in the window stating that gay couples are not served?

“You would not think that an affront to the gay community?” he asked U.S. Solicitor General Noel Francisco.

Ruling for the baker could have a broad impact, he said, and persuade others around the country to join a movement to refuse service to gay couples. “Would the government feel vindicated in its position?” Kennedy said, sounding irked.

Backpedaling, Francisco said the administration was defending the principle of free expression. “The problem is when you force somebody not only to speak, but to contribute that speech to an expressive event to which they are deeply opposed, you force them to use their speech to send a message that they fundamentally disagree with,” he said. And that is “the core of what the First Amendment protects.”

During the second half of the argument, it was clear that Kennedy was equally troubled by what he saw as religious bias against Phillips for his conservative Christian beliefs.

The focus on religious bias made it hard to predict the outcome. Last year, lawyers for the Arizona-based Alliance Defending Freedom asked the Supreme Court to hear the case of Masterpiece Cakeshop vs. Colorado and to rule on whether the state’s insistence that Phillips offer full and equal service to gay couples violated his rights to the freedom of speech and the “free exercise of religion.”

Here at MaineToday Media we value our readers and are committed to growing our community by encouraging you to add to the discussion.

To ensure conscientious dialogue we have implemented a strict no-bullying policy. To participate, you must follow our Terms of Use. Click here to flag and report a comment that violates our terms of use.